Document Content

CIRCULAR

Guiding a number of contents regarding formulation, evaluation and approval of investment projects on the construction of works; construction permits; and management of investment projects on the construction of works provided for in the Government's Decree no. 16/2005/ND-CP of February 7, 2005, and Decree no. 112/2006/ND-CP of September 29, 2006

Pursuant to the Government's Decree No. 36/2003/ND-CP of April 4, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Construction;

Pursuant to the Government's Decree No. 16/2005/ND-CP of February 7, 2005, on the management of investment projects on the construction of works;

Pursuant to the Government's Decree No. 112/2006/ND-CP of September 29, 2006, amending and supplementing a number of articles of the Government's Decree No. 16/2005/ND-CP on the management of investment projects on the construction of works;

The Ministry of Construction provides guidance on a number of contents regarding formulation, evaluation and approval of investment projects on the construction of works; construction permits; and management of investment projects on the construction of works provided for in the Government's Decree No. 16/2005/ND-CP of February 7, 2005, on the management of investment projects on the construction of works (below referred to as Decree 16/CP for short) and the Government's Decree No. 112/2006/ND-CP of September 29, 2006, amending and supplementing a number of articles of the Government's Decree No. 16/2005/ND-CP on the management of investment projects on the construction of works (below referred to as Decree 112/CP for short) as follows:

Part I

GUIDANCE ON THE FORMULATION, EVALUATION AND APPROVAL OF INVESTMENT PROJECTS ON THE CONSTRUCTION OF WORKS

I. Determination of investors of projects funded with state budget capital

1. For projects in which the investment is decided by the Prime Minister, investors may be any of the following agencies or organizations: ministries, ministerial-level agencies, government-attached agencies or other central agencies (collectively referred to as ministerial-level agencies), People's Committees of provinces or centrally run cities (collectively referred to as provincial-level People's Committees) and state enterprises.

2. For projects in which the investment is decided by ministers, heads of ministerial-level agencies or presidents of People's Committees of all levels, investment deciders shall assign units that will manage and/or use the works to act as investors.

When a unit that will manage and/or use the work fails to meet the organizational structure, personnel, time or other necessary conditions for performance of the tasks and powers of an investor, or when the unit managing and/or using the work is not yet identified, the investment decider shall assign a unit which satisfies the above conditions to act as investor. Specifically as follows:

When the unit that will manage and/or use the work is not assigned to act as investor, such unit shall issue a document appointing a person to join the investor in managing the construction investment project and receive the work for putting it to exploitation and use. The investor shall arrange an appropriate position for the person of the unit that will manage and/or use the work to take part in managing the work right from the formulation of the project to the hand-over and putting of the work to use, ensuring the efficiency and objectives of the project. When the investor sets up a project management unit, one of the deputy directors of the project management unit must be the person of the unit that will manage and/or use the work.

When the unit that will manage and/or use the work is not yet identified, such unit shall be identified in the course of execution of the project in order to join the investor in testing before acceptance and receiving the work for putting it to exploitation and use.

II. For group-A projects not included in plannings

1. Before formulating an investment project on work construction which is not yet included in a branch planning or does not conform to a branch planning approved by a competent authority, the investor shall report it to the branch-managing ministry, which shall consider and supplement the planning according to its competence or submit the project to the Prime Minister for approval. For example: If an investment project on the construction of a power plant in Province X is not yet included in the electricity industry planning, before formulating the project, the investor shall report it to the Ministry of Industry for the latter to consider and adjust the planning according to its competence or submit the project to the Prime Minister for approval and additional inclusion in the electricity industry planning.

2. Before formulating an investment project on work construction which is not yet included in a construction planning or when a construction planning is not yet available, the investor shall report it to the provincial-level People's Committee for the latter to consider and approve the location, scale and total ground area of the project; at the same time, the provincial-level People's Committee shall adjust or formulate the construction planning according to regulations.

III. Formulation, evaluation and approval of investment projects on the construction of works

1. Formulation of an investment project on work construction:

After registering investment or being granted an investment certificate under the investment law, the investor shall formulate an investment project on work construction, carry out procedures for submission of the project for approval, and take subsequent steps as stipulated in the Construction Law, Decree 16/CP, Decree 112/CP and this Circular.

2. Competence to evaluate an investment project on work construction:

a/ The investment decider shall evaluate an investment project on work construction before approval. The project evaluator is a professional unit of the investment decider as provided for in Clause 5, Article 1 of Decree 112/CP. For a project in which the investment in decided under authorization, the project evaluator is a professional unit of the person authorized to decide on investment.

b/ Competence to evaluate basic designs must comply with Clause 5, Article 1 of Decree 112/CP.

For group-B and group-C projects in which the investment is decided by the Ministry of Industry, the Ministry of Agriculture and Rural Development, the Ministry of Transport, the Ministry of Construction, economic groups or state corporations, those ministries, groups or corporations shall themselves evaluate basic designs after obtaining localities' opinions on construction plannings and environmental protection. Specifically:

The Ministry of Industry shall itself evaluate basic designs of works under investment projects on the building of mines or oil and gas works, power plants, electricity transmission lines, transformer stations, production of chemicals or industrial explosives, machine building, metallurgy, or specialized industrial works of groups B and C, in which the investment is decided by the Ministry of Industry.

The Ministry of Agriculture and Rural Development shall itself evaluate basic designs of works under investment projects on the building of irrigation works and dykes of groups B and C, in which the investment is decided by the Ministry of Agriculture and Rural Development.

The Ministry of Transport shall itself evaluate basic designs of works under investment projects on the building of traffic works of groups B and C, in which the investment is decided by the Ministry of Transport.

The Ministry of Construction shall itself evaluate basic designs of works under investment projects on the building of civil works, construction material industry and urban technical infrastructure of groups B and C, in which the investment is decided by the Ministry of Construction.

Economic groups and state corporations shall themselves evaluate basic designs of works under projects of groups B and C in which the investment is decided by themselves if those projects are in the specialized domains assigned by the State to them for management. For example: The Electricity of Vietnam Group (EVN) which is assigned by the State to manage the national power grid may itself evaluate basic designs of works under electricity grid projects of groups B and C in which the investment is decided by itself. For other projects in which the investment is decided by EVN, competent state agencies defined in Clause 5, Article 1 of Decree 112/CP shall evaluate basic designs.

3. Order and procedures for the evaluation and approval of an investment project on work construction:

a/ The investor shall make and send the project dossier to the project evaluator for evaluation before submitting it to the person with investment-deciding competence for approval.

A project dossier submitted for evaluation comprises:

- A report for project evaluation, made according to Form No. 1 to this Circular (not printed herein);

- The investment project on work construction, including explanations and the basic design;

- The written permission for investment, for national important projects; the written approval of the branch planning, for group-A projects not included in a branch planning; or the written approval of the construction planning, for projects not included in a construction planning;

- Relevant legal documents.

b/ The project evaluator shall receive the investor's project dossier and send it to concerned agencies for comments and, at the same time, send a dossier for evaluation comments on the basic design to agencies competent to evaluate basic designs defined in Clause 5, Article 1 of Decree 112/CP.

The basic design-evaluating agency shall evaluate the basic design and send evaluation results to the project evaluator. The evaluation results of the basic design shall be presented according to Form No. 2 to this Circular (not printed herein).

When necessary, to ensure convenience, the project evaluator may authorize the investor to send the project dossier and explanations directly to the agency competent to evaluate the basic design.

c/ Duration of evaluation of projects:

The duration of evaluation of projects, including the duration of evaluation of basic designs, is counted from the date a complete and valid dossier is received. Specifically:

- For important national projects: The duration of evaluation of projects is as stipulated in the National Assembly's Resolution No. 66/2006/QH11, of which the duration of evaluation of basic designs must not exceed 30 working days.

- For group-A projects: The duration of evaluation of projects must not exceed 40 working days, of which the duration of evaluation of basic designs must not exceed 20 working days.

- For group-B projects: The duration of evaluation of projects must not exceed 30 working days, of which the duration of evaluation of basic designs must not exceed 15 working days.

- For group-C projects: The duration of evaluation of projects must not exceed 20 working days, of which the duration of evaluation of basic designs must not exceed 10 working days.

d/ Project evaluators shall evaluate projects, sum up comments of concerned agencies and evaluation results of basic designs, give their comments, evaluations and recommendations, and submit them to investment deciders for the latter to approve the projects.

A project dossier submitted for approval comprises:

- A report for project approval, made according to Form No. 3 to this Circular (not printed herein), indicating the evaluation results of the project; comments, evaluations and recommendations to the investment decider;

- The investor's project dossier submitted for evaluation specified at Item a, Point 3 of this Section;

- Evaluation documents of competent agencies related to the project.

IV. Formulation, evaluation and approval of econo-technical reports on the construction of works

1. Formulation of econo-technical reports on the construction of works:

a/ The investor shall formulate, or hire a consultancy organization to formulate, an econo-technical report on work construction investment (below referred to as econo-technical report for short). Such an econo-technical report shall be made in accordance with Clause 4, Article 35, of the Construction Law.

b/ Model designs or typical designs promulgated by competent state agencies may be used to prepare a construction drawing design in the econo-technical report.

2. Evaluation of econo-technical reports:

a/ The investment decider shall evaluate an econo-technical report before approval. The econo-technical report evaluator is a professional unit of the investment decider as defined in Clause 5, Article 1 of Decree 112/CP. For an econo-technical report on the investment decided under authorization, the report evaluator is a professional unit of the person authorized to decide on investment.

b/ The investor shall evaluate the construction drawing design and the work cost estimate or, when necessary, he/she/it may hire a consultant to conduct a verification as a basis for evaluation. For works in the domain of the environment, fire and explosion prevention and fighting, or security and defense, upon evaluation of their construction drawing designs, the agencies in charge of those domains shall be consulted.

The evaluation results of construction drawing designs and cost estimates shall be presented according to Form No. 4 to this Circular (not printed herein).

c/ The investor shall send the dossier to the econo-technical report evaluator for evaluation before the investment decider approves the econo-technical report.

A dossier of econo-technical report submitted for evaluation comprises:

- The report for evaluation of the econo-technical report, made according to Form No. 5 to this Ciruclar (not printed herein);

- The econo-technical report, including explanations and the construction drawing design;

- The evaluation results of the construction drawing design and cost estimate, enclosed with written comments of concerned agencies (if any).

d/ The evaluator shall send the dossier of the econo-technical report to professional units of the investment decider for evaluation comments on the econo-technical report.

The maximum duration of evaluation of an econo-technical report is 20 working days, of which the maximum duration for concerned units to give their comments is 10 working days.

e/ The investment decider shall evaluate an econo-technical report through:

- Considering efficiency assurance elements, including the necessity of the investment; inputs; scale, capacity, technologies, schedule of implementation; financial analysis and socio-economic benefits.

- Considering feasibility assurance elements, including conformity with the approved planning; the demand for use of land and natural resources (if any); ground clearance possibility; capacity to mobilize capital to ensure progress; capacity to repay loans; the investor's managerial experience; and the results of evaluation of the construction drawing design and cost estimate.

3. Approval of an econo-technical report:

a/ After evaluating an econo-technical report, the evaluator shall submit the dossier to the investment decider for consideration and approval.

A dossier of the cono-technical report submitted for approval comprises:

- The report for approval of the econo-technical report, made according to Form No. 6 to this Circular (not printed herein), indicating the results of evaluation of the econo-technical report; comments, evaluations and recommendations to the investment decider;

- The investor's dossier of the econo-technical report submitted for evaluation;

- Written comments of concerned agencies.

b/ The person competent to decide on investment shall approve the econo-technical report based on the evaluator's evaluation results. A decision approving the econo-technical report shall be made according to Form No. 7 to this Circular (not printed herein).

After an econo-technical report is approved by a competent person, the construction drawing design shall be stamped and certified by the investor before it is used for construction.

V. Formulation, evaluation and approval of work construction investment projects funded with ODA or foreign direct investment capital

1. For ODA-funded projects:

The formulation, evaluation and approval of ODA-funded investment projects on the construction of works must comply with the construction law and the law on management and use of official development assistance (ODA). Particularly, the competence to evaluate basic designs and evaluation contents must comply with the construction law. When an ODA treaty signed between the Vietnamese State or Government and donors contains different provisions, the provisions of that treaty prevail.

2. For foreign direct investment projects:

After being granted investment certificates under the investment law, investors shall formulate investment projects on the construction of works, carry out procedures for submission of projects for approval, and take subsequent steps in accordance with the Construction Law, Decree 16/CP, Decree 112/CP and this Circular.

Part II

GUIDANCE ON THE GRANT OF CONSTRUCTION PERMITS

I. Application for work construction permits

1. Before constructing works, construction permits are required under the provisions of the Construction Law, Decree 16/CP and Decree 112/CP, except for works defined at Point 2 of this Section.

2. Construction permits are not required for the following works:

a/ Works classified as state secrets;

b/ Works built under urgent orders;

c/ Makeshift works in service of the construction of principal works;

d/ Works built in lines not running through urban centers which are conformable with approved construction plannings;

e/ Works under construction investment projects already approved by competent state agencies, excluding works for which only econo-technical reports are required. However, before starting the construction of works, investors shall send the evaluation results of basic designs to construction permit-granting agencies for monitoring and management;

f/ Construction works under projects on new urban centers, industrial parks or residential areas with detailed construction plannings of a scale of 1/500 already approved by competent state agencies;

g/ Works on repair, renovation or installment of interior equipment without changing the architecture, force-bearing structure or safety of the works;

h/ Technical infrastructure works capitalized at under VND 7 billion each in deep-lying or remote communes which are located outside cultural-heritage conservation zones or historical-cultural relics;

i/ Individual dwelling houses in deep-lying or remote areas neither in urban centers nor in concentrated population quarters; or individual dwelling houses in rural residential areas without approved construction plannings.

3. Makeshift construction permits:

a/ The grant of makeshift construction permits shall apply only to areas for which construction plannings have been approved and publicized but are not implemented yet.

b/ Provincial-level People's Committees shall specify the grant of makeshift construction permits to suit local situation and characteristics.

c/ A makeshift construction permit must clearly indicate the permitted existence duration of the work. Upon the expiration of the duration specified in the makeshift construction permit, if the State clears the ground for implementation of the planning, the investor shall itself dismantle the work; if the investor fails to dismantle the work, the work shall be dismantled under coercion and the investor shall bear all expenses for such dismantlement.

The compensation and ground clearance for implementation of plannings must comply with current regulations; particularly, the construction under makeshift construction permits is not eligible for compensation.

4. Grant of construction permits to works under projects:

a/ For a project involving many works located in different provinces or centrally run cities, for a work located in a locality, the investor shall apply for a construction permit in that locality.

b/ For a project involving many works located in one place in a province or centrally run city, the investor may apply for a construction permit for all the works in that province or centrally run city.

II. Dossiers of application for construction permits

1. Dossiers of application for permits for construction of urban works and dwelling houses:

The dossiers of application for construction permits are as stipulated in Article 18 of Decree 16/CP and Clause 10, Article 1 of Decree 112/CP.

2. Dossiers of application for permits for construction of rural dwelling houses:

The dossiers of application for construction permits are as stipulated in Article 19 of Decree 16/CP, of which the ground plan is made according to Form No. 8 to this Circular (not printed herein). The plan of the work ground must clearly indicate the dimensions and the land occupancy area of the house, the works on the land lot, distance from the work to surrounding works, and points for connecting electricity, communication and water supply and drainage systems with public technical infrastructures (if any). The drawing must contain the name of the house owner, the address of his/her place of residence, the construction site, and the name and address of the drawer of that plan.

3. Dossiers of application for permits for the construction of works under projects with evaluated basic designs:

The investor may apply for a construction permit for a work, once for many works, or once for all works under a project.

a/ A dossier of application for the construction permit for a work comprises:

- Documents specified in Clauses 1 and 2, Article 18 of Decree 16/CP;

- The evaluation results of the basic design.

b/ A dossier of application for the construction permit for many works or for all works under a project comprises:

- An application for construction permit, made according to Form No. 9 to this Circular (not printed herein);

- A notarized or authenticated copy of the land use rights certificate as provided for by law;

- The evaluation results of basic designs of the works for which the investor applies for construction permit.

III. Contents of a construction permit

A construction permit has the principal contents as stipulated in Clause 1, Article 64 of the Construction Law and takes one of the following forms:

1. Permit for the construction of urban works and dwelling houses, made according to Form No. 1, Appendix No. 6 to Decree 16/CP.

2. Makeshift construction permit, made according to Form No. 2, Appendix No. 6 to Decree 16/CP.

3. Permit for the construction of rural dwelling houses, made according to Form No. 3, Appendix No. 6 to Decree 16/CP.

4. Permit for the construction of works under projects, made according to a form in Appendix No. 10 to this Circular.

IV. Competence to grant construction permits

1. Provincial-level People's Committees shall authorize directors of provincial-level Construction Services to grant construction permits for construction works of special grade or grade I (according to the classification of works provided for in the Decree on the quality management of construction works); religious works; historical-cultural relics works; monuments, advertisement signboards or grandiose paintings within the administrative boundaries under their management; works on principal routes or major streets in urban centers; works under projects funded with direct foreign investment capital; and works under other projects and works as provided for by provincial-level People's Committees.

2. District-level People's Committees shall grant construction permits for remaining urban works and individual dwelling houses within the administrative boundaries under their management, except for the works specified at Point 1 above.

3. Commune-level People's Committees shall grant construction permits for individual dwelling houses in rural residential areas where the construction plannings have been approved within the administrative boundaries under their management.

V. Modification of construction permits

1. When wishing to modify the work construction design, resulting in changes in the contents of the granted construction permit, the investor shall apply for the modification of the construction permit before constructing the work according to the modified contents. The construction permit-granting agency is also competent to modify the granted construction permits, while ensuring conformity with construction plannings and taking responsibility for the modified contents of construction permits. The modified contents of a construction permit shall be entered in the section "extension, modification" in the granted construction permit.

2. A dossier of application for the modification of a construction permit comprises:

a/ An application for the modification of the construction permit;

b/ The original construction permit;

c/ The modified design drawing.

3. The time limit for considering the modification of a construction permit is 10 working days after the receipt of a complete and valid dossier.

Part III

GUIDANCE ON THE MANAGEMENT OF INVESTMENT PROJECTS ON THE CONSTRUCTION OF WORKS

I. Cases where investors directly manage projects

1. An investor that directly manages a project shall set up a project management unit (below abbreviated to PMU), except for small and simple projects capitalized at under VND 1 billion.

The PMU is a unit attached to the investor, has the legal person status or uses the legal person status of the investor in managing the project. The tasks and powers of the PMU shall be defined by the investor.

The organizational structure of the PMU shall be decided by the investor to suit the size, nature and requirements of the project as well as the tasks and powers defined by the investor. The PMU may hire a consultancy organization or individual to manage and supervise some components of the project which it is incapable of doing so, provided that such hire is approved by the investor.

A PMU is composed of a director, deputy directors and professional sections; PMU personnel may work on a full-time or part-time basis. The director, deputy directors and persons in charge of technical, economic and financial matters must have university degrees relevant to the matters they are in charge of and have at least three years' working experience. Particularly for group-C projects in deep-lying and remote areas, the above posts may be held by persons having relevant college degrees or intermediate degrees.

2. For small and simple projects capitalized at under VND 1 billion, investors may, instead of setting up PMUs, employ their professional sections to manage the projects; when necessary, investors may hire persons with professional qualifications and experience to assist them in managing the projects.

3. PMUs shall be dissolved after they have completed their tasks.

II. Cases where investors hire consultants to manage projects

1. When a consultant is hired to manage a project, the consultancy contractor shall set up an organization to directly manage the project according to the contract signed with the investor. This organization is composed of the project management consultancy director, deputy directors and professional sections suitable to the tasks and powers defined in the contract signed between the consultancy contractor and the investor.

The project management consultancy director must have full capacity as specified in Clause 1, Article 55 of Decree 16/CP. Deputy directors and persons in charge of professional matters must have relevant university degrees and have at least three years' working experience.

The project management consultancy contractor may hire a consultancy organization or individual to join in managing some components of the project provided that such hire is approved by the investor and the hired organization's or individual's tasks and powers are compatible with those defined in the contract signed with the investor.

2. The tasks and powers of the consultancy organization directly managing the project at construction site shall be defined in writing by the consultancy contractor and sent to the investor for notification to relevant contractors.

III. Responsibilities of investors in managing investment projects on the construction of works

Investors have the tasks and powers as provided for by the construction law from the preparation of a project, execution of the project and acceptance and hand-over of the work for putting it to exploitation and use. For the tasks and powers already assigned by the investors to PMUs (under decisions to set up PMUs) or project management consultants (under contracts signed with project management consultancy contractors), the investors shall direct, monitor, urge and inspect the performance of those tasks and powers to ensure that the projects are executed according to the approved contents and progress. The investors shall take full responsibility for the jobs under their tasks and powers in accordance with law, even for the jobs already assigned to the PMUs or project management consultancy contractors.

Part IV

GUIDANCE ON TRANSITIONAL HANDLING

I. Transitional handling regarding the procedures for the formulation, evaluation and approval of investment projects on the construction of works and subsequent jobs

1. For investment projects on the construction of works which were approved before the effective date of Decree 16/CP but are not yet executed or are underway, investment deciders shall decide to carry out the procedures for performing the remaining jobs in accordance with Decree 16/CP or the regulations prior to the effective date of Decree 16/CP. If the investment deciders have decided to carry out the procedures for performing the remaining jobs according to the regulations prior to the effective date of Decree 16/CP, those regulations shall still be applied; if they have decided to carry out the procedures for performing the remaining jobs in accordance with Decree 16/CP, the transition to implementation of Decree 112/CP is as guided at Point 2 of this Section.

2. Before the effective date of Decree 112/CP, the procedures shall not be re-carried out for investment projects on the construction of works which have not yet approved but have project evaluation results or which have been approved but are not yet executed or are underway. The remaining procedures shall be carried out in accordance with Decree 16/CP, the amendments and supplements in Decree 112/CP, and the guidance in this Circular.

In the course of execution of a project, if modifications are made, resulting in changes in the basic design, the competence to evaluate the changed basic design is as defined in Decree 112/CP.

II. Transitional handling regarding the grant of construction permits

1. Construction permits are not required for construction works in which investment has been decided and for which construction permits are not required as provided for in Decree 16/CP when the construction of which started before the effective date of Decree 112/CP.

2. Where a project involving many works in which investment has been decided and the construction of some of these works started before the effective date of Decree 112/CP, if the investor carries out the procedures for application for the construction permit once for all works under that project, he/she/it shall follow the guidance at Point 4, Section I and Point 3, Section II, Part II of this Circular and declare the works of which construction started. The construction permit-granting agency shall inspect the observance of law with respect to these works before giving certification in the construction permit.

3. For works under construction investment projects which were approved before the effective date of Decree 112/CP but the construction of which has not started yet, before their construction starts, construction permits should be applied in accordance with Decree 112/CP and the guidance in this Circular, excluding works for which construction permits are not required as specified at Point 2, Section I, Part II of this Circular.

III. Transitional handling regarding the management of projects

1. PMUs already assigned to act as investors shall be reorganized timely in accordance with current provisions of law to ensure the principle that investors shall set up PMUs, assign tasks to, and inspect the performance of the PMUs.

2. Regional PMUs and specialized PMUs set up by ministries, branches or localities for management of many projects shall be converted into professional project management consultancy organizations operating under the enterprise law or be dissolved. When a PMU is assigned to manage one or many projects which will be completed in 2007, such PMU may be maintained but shall be reorganized to be fully capable of performing the remaining jobs. After a project is completed, the PMU shall be dissolved or transformed in accordance with the enterprise law.

Part V

IMPLEMENTATION PROVISIONS

I. This Circular replaces the following documents:

1. The Construction Ministry's Circular No. 08/2005/TT-BXD of May 6, 2005, guiding a number of contents regarding the formulation, evaluation and approval of investment projects on the construction of works and transitional handling for implementation of the Government's Decree No. 16/2005/ND-CP of February 7, 2005.

2. The Construction Ministry's Circular No. 09/2005/TT-BXD of May 6, 2005, guiding a number of contents regarding construction permits.

3. Points 3.1, Section II on PMUs of the Construction Ministry's Circular No. 12/2005/TT-BXD of July 15, 2005, which guides a number of contents regarding the quality management of construction works and capacity conditions for organizations and individuals in construction activities.

II. Implementation effect:

1. This Circular takes effect 15 days after its publication in "CONG BAO." Previous regulations on the formulation, evaluation and approval of investment projects on the construction of works; construction permits; and the management of investment projects on the construction of works, which are contrary to the guidance in this Circular, are all annulled.

2. Organizations and individuals should report problems arising in the course of implementation to the Ministry of Construction for consideration and solution.